Sunday, November 3, 2013

In 1894, Yale created the first university police (n.b. the link has photos!). Two New Haven police officers agreed to take exclusive assignment to the Yale campus after some town and gown skirmishes, including a scuffle over rumors that the medical school was exhuming bodies from graves to use as cadavers. (!)

Nowadays, campus police (generally at bigger schools) get their authority from state legislatures. Most states have state laws that give university police concurrent jurisdiction with other law enforcement. Some campus police departments have mutual aid agreements with nearby law enforcement agencies in case of an emergency. And the presence of campus police does not necessarily mean that municipal police are divested of jurisdiction on campus, even if campus police have primary jurisdiction. Private security guards (generally hired at smaller schools) cannot make arrests, but can be licensed to carry weapons.

Yale University Public Safety, History of the YPD (quoting Bill Wiser: "In 1894, Jim Donnelly and I were assigned by the chief of the New Haven police to duty the Yale campus. No policeman before this time had ventured on these sacred grounds, and the campus had come to be considered a place of refuge for students fleeing from the wrath of the city police . . . . The general belief on the force was that the Yale boys would never permit two policemen to live on campus.")

University of California Police - Cal. Pen. Code 830.2(b) (UCPD's primary duty is to enforce the law within the area specified in Cal. Ed. Code 92600); Cal. Ed. Code 92600 (UCPD officers have jurisdiction on University of California campuses, within a one-mile radius of the campus, and in and around property owned by the UC Regents).

California State University Police - Cal. Pen. Code 830.2(c) (CSUPD's primary duty is to enforce the law within the area specified in Cal. Ed. Code 89560); Cal. Ed. Code 89560 (UCPD officers have jurisdiction on California State University campuses, within a one-mile radius of the campus, and in and around property owned by--or on behalf of--the California State University).

Colorado:

Colorado Revised Statutes 16-2.5-148: Colorado state higher education police officer ("A Colorado state higher education police officer employed by a state institution of higher education pursuant to article 7.5 of title 24, C.R.S., is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado and who shall be certified by the P.O.S.T. board."); Colorado Revised Statutes 24-7.5-101 through 25-6.5-106: Colorado Higher Education Police Officers; see especially Colorado Revised Statutes 24-7.5-103: Powers Conferred ("State higher education police officers . . . when operating on property owned or leased by the state institution of higher education, are granted all the powers conferred by law upon peace officers to carry weapons and make arrests. . . . When not on property owned or leased by the state institution of higher education, state higher education police officers shall not have any greater authority than that conferred upon peace officers by section 16-3-110, C.R.S."); Colorado Revised Statutes 16-3-110(b)(2) ("A peace officer shall have the authority to act in any situation in which a felony or misdemeanor has been or is being committed in such officer's presence, and such authority shall exist regardless of whether such officer is in the jurisdiction of the law enforcement agency that employs such officer or in some other jurisdiction within the state of Colorado or whether such officer was acting within the scope of such officer's duties when he or she observed the commission of the crime, when such officer has been authorized by such agency to so act. The local law enforcement agency having jurisdiction shall be immediately notified of the arrest and any person arrested shall be released to the custody of the local law enforcement agency."). Colorado Revised Statutes available free to the public on LexisNexis if you click a disclaimer, then search using the following form: C.R.S. 16-2.5-148.

Saturday, November 2, 2013

New states are not entirely outside the realm of possibility. After all, the United States' state boundaries didn't magically spring forth from the earth pre-formed. Congress passed laws granting statehood as recently as 1959 (Alaska and Hawaii) and 1912 (New Mexico and Arizona). There is even precedent for secession: West Virginia seceded from Virginia in 1863.

But law can't legislate death away. So when the law confronts birth and death, what does it do? It requires registration of these important life events. (Not to mention lawmaking about euthanasia, contraception, sterilization, and abortion--topics that I will leave for another day.)

Federal law requires national collection and publication of vital statistics. Federal law can also require you to produce a state birth certificates for various activities, like getting a passport (or being President, in Orly Taitz's universe).

States also regulate vital statistics. Some states had vital statistics laws as early as the late 19th century, but generally they were not enforced until the early 20th century. Missouri, for example, repealed its 1883 vital statistics law in 1893 because most people were not complying (Missouri passed another vital statistics law in 1909, which stuck). Wisconsin passed a vital statistics law in 1852, but counties kept very few records before 1907.

In the hospital, getting a birth or death certificate is pretty straightforward. But what if you are born or die at home?

Home births can sometimes make registering a birth more difficult, though some midwifes assist in the process. Jurisdictions may require more proof of facts like the identity of the parents, the pregnancy of the mother, that the infant was born alive, that the birth occurred in the jurisdiction, and the identity of the witness of the birth.

For deaths, States like Texas require use of an Electronic Death Registration System.

Say a homeowner took out $500,000 at the height of the market to buy a house, but that house is now only worth $250,000 after the housing crisis. Homeowners are stuck--they cannot afford to pay their mortgage, but they cannot sell their homes to repay the mortgage, either.

It is in the bank's interest as well as the homeowner's to keep the homeowner in her home and making affordable loan payments. Ideally, the bank would reduce the amount the homeowner owes on the mortgage to match the home's diminished value. But for various reasons, it is hard to make principal reduction happen. One of these reasons is that banks are not always free to do what they want with the mortgages they created (or in Bankish, the mortgages that they "originated").

Wait, what? Banks don't call the shots on the mortgages they originated? Here's why. Banks often "pool" mortgages and sell them to financial institutions (either government--think Fannie Mae and Freddie Mac--or investment banks), who in turn sell them to groups of investors. The banks can take the money they make selling off mortgages towards making new loans. Great idea, right? The risks of individual mortgages are evened out, and banks have the money to keep on churning out fresh loans.

But there are consequences of this pooling system. Banks that sell off mortgages have to follow certain conditions laid out in "pooling and servicing" agreements. These pooling and servicing agreements are notoriously sloppy. When they were drafted, nobody expected things to go wrong. If you're in the mood to gouge your eyes out, you can read through one of the disastrous things here. Though pooling and servicing agreements often take away the banks' rights to modify the mortgages they sell, the example agreement I've chosen actually appears to grant banks authority to modify--but kind of tough to tell what exactly the bank is allowed to do under the agreement's murky language: "In order to minimize losses on defaulted mortgage assets, the servicer may. . . be permitted to modify mortgage assets that are in default or as to which a payment default appears imminent."

If you're feeling brave, you can look to see if your own mortgage has a pooling and servicing agreement using these instructions from the Ohio Supreme Court. Start here and put in your lender's name, look for the date your mortgage was made, click on the prospectus, then do a control + F for "modify" to see what the contract says about your bank/servicer's authority to modify. This process of finding your pooling and servicing agreement is one part art, one part science, and one part guesstimation, so please don't despair--it's not you, it really is just unnecessarily complicated and confusing.

In pooling and servicing agreements, investors often freeze the original loan contract in place. As a result, the banks don't have the authority to modify the home loans. All that the bank can do under the contract is continue to collect mortgage payments and send them along to the investors who own the pool of mortgages.

Again, everybody here is stuck: the homeowner is stuck in her home, the bank is stuck charging a homeowner according to the original plan, and both are locked in to an agreement by an depersonalized group of investors who have no relationship to either homeowner or bank.

Enter law. The law can fix things, right? Well, people are trying a lot of different legal strategies to deal with underwater mortgages.

State and federal governments tried to address part of the underwater home loan situation using litigation. In 2012, the Department of Justice, the District of Columbia, and 49 states' attorneys general (all except Oklahoma) sued the five major mortgage lenders: Bank of America, Wells Fargo, JP Morgan Chase, Ally/GMAC, and Citi. They brought the suit in the DC Circuit in March, and by April all five of the banks agreed to settle. The complaint specifically did not address the mortgage securitization issues we talked about above, like pooling and servicing agreements, but focused mostly on the banks' deceptive and unfair business practices in customer service (being uncommunicative, transferring homeowners to many different points of contact, foreclosing on a house while a homeowner was applying for a modification, etc.).

The way eminent domain would work with underwater mortgages is roughly as follows: governments would seize the mortgages and pay the investors (generally pension funds and money market accounts) fair market value for them. Local governments would then sell the mortgages to a new investor, which would generate the money to pay fair market value for other underwater mortgages. Sound familiar? It's similar to the process banks use to service mortgages, just with a local government stepping in to press the "re-set" button.

Would a "re-set" be fair to the people who depend on those pension funds and money market accounts (like those who depend on the California Public Employee Retirement System)? Would those funds have any chance of getting the money they expected, anyway?

Saturday, October 26, 2013

Last year, Congress passed a bill that changed how body scanners work at the airport. TSA agents will no longer see an image of your naked body that looks like this -- they will see a generalized graphic that looks like this. The bill went into effect this summer.

The story begins with the Christmas "underwear bomber." On December 25, 2009, Umar Farouk AbdulMutallab attempted to detonate a device onboard Northwest Airlines Flight 253 as the plane neared its destination of Detroit, Michigan. The device started a fire inside the plane, but only AbdulMutallab and a few fellow passengers were injured (including Jasper Schuringa and other passengers who helped put out the fire and restrain AbdulMutallab).

AbdulMutallab had boarded the plane on a leg of the flight from Lagos, Nigeria, to Amsterdam without going through a full body scan. The plastic explosive ingredients in AbdulMutallab's underwear (including pentaerythritol tetranitrate) are not detectable by metal detector.

Shortly after the "underwear bomber" incident, the Transportation Security Administration ("TSA") installed body scanners in airports throughout the country. At their peak, about 180 body scanners were in use in airports throughout the United States.

Many have raised health concerns or concerns that the body scanners are not effective, but Congress has acted primarily in response to privacy concerns. In 2012, Congress passed The FAA Modernization and Reform Act, which required all body scanners to employ Automated Target Recognition software that does not display an image of the airline passenger's naked body. The Act initially set a deadline of June 1, 2012, that was later extended to June 1, 2013.

Despite the extension, Rapiscan Systems failed to upgrade the airport body scanners to use Automated Target Recognition software. As a result, TSA ended the "backscatter contract" with the Hawthorne, CA-based security company. The contract was originally worth multiple millions of dollars. The Rapiscan body scanners are now being replaced with radio body scanners built by L-3 Communications Holdings.

49 USC § 44901 - Screening passengers and property - (l) Limitations on Use of Advanced Imaging Technology for Screening Passengers. ("Beginning June 1, 2012, the Assistant Secretary of Homeland Security (Transportation Security Administration) shall ensure that any advanced imaging technology used for the screening of passengers under this section is equipped with and employs automatic target recognition software; and complies with such other requirements as the Assistant Secretary determines necessary to address privacy considerations.")

Thursday, October 24, 2013

Ahh, falling back. Daylight Savings Time ends at 2:00 a.m. on November 3, 2013, when people in many parts of the world will turn clocks back to 1:00 a.m. for a bizarre do-over of 1:00 a.m. to 2:00 a.m. that day. Even as we remember the sting of springing forward, "getting an extra hour" in the morning feels sooooo good.

But the rationale for Daylight Savings Time is not to gain that extra hour of sleep in the fall. It's for that extra hour of daylight in the summer. During summer months, some parts of the world advance their clocks one hour to maximize evening daylight hours, in theory saving energy required to light evening activities before bed.

Kind of crazy, until you realize that historically, many societies depended so heavily on the sunlight that they measured the day in unequal hours (e.g. Talmudic hours), where an hour meant a certain fraction of the daylight--anywhere from 44 to 75 minutes long, depending on the season.

Thinking about time as a social and legal construct makes my head hurt a little bit. It made 20th Century America's head hurt a little bit, too. In the United States, the Standard Time Act of March 19, 1918 established standard time zones and the first observance of Daylight Standard Time as an energy saving effort. Daylight Standard Time was unpopular and was abolished until World War II, when it enjoyed another nationwide stint from 1942-1945. Since 1945, the question of whether to observe Daylight Savings Time has been up to the states. Although the 1966 Uniform Time Act expressly superseded state laws, the Act allowed leeway for 1) entire states or 2) entire portions of a state within a given time zone to exempt themselves from Daylight Savings Time. Arizona, Hawaii, Puerto Rico, and the U.S. Virgin Islands do not observe Daylight Savings Time.

Native nations are free to observe or not observe Daylight Savings Time. The Navajo Nation in Arizona, for example, observes Daylight Savings Time. The Hopi Reservation does not, despite being surrounded by the Navajo Nation. In fact, in Tuba City, AZ, the time zone can change across the street.

For more:

U.S. Constitution, Article I, Section 8, Clause 5: Weights and Measures ("Congress shall have the power . . . To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures")

This blog is

Point of departure:

Mariana Valverde noted the "failure to analyze, and even to see, the legal dimensions of routine life" and "the areas of law that work without fanfare and without police" in Everyday Law on the Street: City Governance in an Age of Diversity. University of Chicago Press, 2012, 7-8.